State v Pora [2019] PGNC 14; N7672 (14 February 2019)

N7672

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 65 OF 2017

BETWEEN:
THE STATE

And
ANDREW PORA

Waigani: Salika, CJ
2018: 23, 26, 27 March
2019: 14 February

CRIMINAL LAW –Practice and Procedure -Appropriate Sentence –Charge of persistent Sexual abuse – S 229 D(1) and (6) of Criminal Code Act- Nine incidents of persistent sexual abuse- No physical injuries – Breach of sacred bond between father and daughter-

Cases Cited:

The State v Kuyaps Toki Jonathan (2008) N3315
The State v Israel Wartovo CR 545 of 2014 (2017)
The State v Steven Siname (2009) N3908
The State v Stephen Maikai (2009) PGNC 239
The State v Danny Tatuvo (2010) N4400
The State v JB (2007) N3224
The State v Peter Lare (2004) N2557
The State v Thomas Angap (2005) N2830

Counsel:
Mr. K. Pokiton, for the State
Mr. E. Sasingian, for the Defence

14^th February, 2019

1. SALIKA CJ: INTRODUCTION: The Prisoner pleaded not guilty to one count of persistent sexual abuse, a charge laid under s.229 D (1) and (6) of the Criminal Code Act but was found guilty by this Court.

FACTS:

2. The Prisoner is the biological father of the victim Serah Andrew. The Prisoner began sexually assaulting her from the 1^st of January 2014 up to and until the 09^th July 2016 when the abuse came to light.

3. The abuse started when Serah was 13 years old. All of these abuse occurred in the family house at Morata 1, Waigani, in the National Capital District.

4. The first instance of abuse occurred at home when Serah had just finished having a shower and had walked out when the Prisoner grabbed her breasts.
   

5. On another occasion between 1^st January 2014 and 09^th July 2016, when Serah had just returned home from school, the Prisoner hit her and told her to sleep on the floor. The Prisoner then proceeded to have sex with Serah by inserting his penis into her vagina.

6. On another occasion between 1^st January 2014 and 09^th July 2016, the Prisoner Andrew Pora threatened the victim Serah Andrew with a knife and proceeded to have sex with her by inserting his penis into her vagina.

7. On the fourth instance, between 1^st January 2014 and 09^th July 2016, Serah returned home from school only to find her father smoking marijuana in the home where he forced her to smoke. After which her father then had sexual intercourse with her by inserting his penis into her vagina.

8. On another occasion between 1^st January 2014 and 09^th July 2016, Serah was watching movies at home when the Prisoner walked in, stopped the movie and played a pornographic movie and then had sexual intercourse with her by inserting his penis into her vagina.

9. On the sixth instance, between 1^st January 2014 and 09^th July 2016, the Prisoner and Serah were together at home where he forced her to suck his penis.

10. Again on another occasion between 1^st January 2014 and 09^th July 2016, Serah was playing with her neighbors children when her father Andrew Pora sent her other siblings to tell Serah to return home. When Serah returned home the Prisoner hit her and had sexual intercourse with her by inserting his penis into her vagina.

11. Yet again on another occasion between 1^st January 2014 and 09^th July 2016 the Prisoner inserted his penis into Serah’s anus when she returned home from school.

12. The final incident occurred on the 09^th of July 2016 which brought the incidents of sexual abuse of Serah Andrew to light.

13. These incidents occurred at home; Serah’s mother returned home and found that the door was closed. She opened the door and saw her husband having sex with her daughter.

14. All this instances of sexual abuse on the victim Serah Andrew occurred while the mother was not home.

15. A medical report dated 11^th July 2016 was conducted two days after the most recent alleged sexual abuse came to light and showed very offensive whitish vaginal discharge, superficial abrasion at the vaginal opening and an old and healed discontinuity at 4,7 and 10 o’clock of the hymen. Vagina opening being 2cm.

16. The State alleged that the conduct of the Prisoner in sexually abusing the victim Serah Andrew 9 times between 1^st January 2014 and 09^th July 2016 contravened section 229 D (1) and (6) of the Criminal Code Act.

ISSUE(S)

17. The Prisoner was found guilty of the charge and the issue now before the court is, what sentence the court should impose on the prisoner.

THE LAW

18. Section 229 D (1) and (6) of the Criminal Code Act provides:

(1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2) for the purpose of subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section –

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section –

(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and

(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.

(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment

19. The maximum term the Court can impose on the Prisoner for committing this offence is life imprisonment.

20. However, Section 19 of the Criminal Code allows the Court to exercise its discretion to impose a lesser penalty other than the maximum prescribed by law. The Court therefore may impose a lesser sentence than life imprisonment.

APPLICATION OF LAW TO FACTS

21. This particular matter falls under the second category of cases involving aggravating circumstances in persistent sexual abuse offences. See the State v Steven Siname (2009) N3908 where the prescribed penalty in this section is life imprisonment. The circumstances of aggravation are defined in section 349. Reads:

Section 349 A. Interpretation

For the purposes of this Division, circumstances of aggravation include, but not limited to circumstances where:

1. The accused person is in the company of another person or persons; or
2. At the time of, or immediately before or after the commission of the offence the accused person uses or threatens to use a weapon; or

100. At the time of or immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant; or

4. the accused person confines or restrains the complainant before or after the commission of the offence; or
5. the accused person, in committing the offence, abuses a position of trust, authority or dependency; or
6. the accused is a member of the same family or clan as the complainant; or
7. the complainant has a serious physical or mental disability; or
8. the complainant was pregnant at the time of the offence; or
9. the accused was knowingly infected by Human Immunodeficiency Virus(HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS)
   

CASE PRECEDENTS

22. In arriving at an appropriate sentence, the Court usually seeks guidance from case precedents. Case precedents referred to are:

1. The State v Stephen Maikai [2009] PGNC 239- Cannings J. After a trial the prisoner aged in his 30s was found guilty of persistent sexual abuse of his sister-in-law aged nine or ten years old. The State on indictment alleged four acts of sexual penetration; however during trial the victim could only recall three acts of sexual penetration.

The sexual abuse occurred over a period of 19 months. The first time the prisoner sexually penetrated the victim’s vagina is when the prisoner took her along with his children to the creek where he left the children on one side of the creek and took her to the betel nut garden and had sex with her by inserting his penis into her vagina.

On another occasion the Prisoner took the victim to the far end of the Oil Palm block (Block number 860) at Sarakolok where she lived, took her into the bushes and had sexual intercourse with her by inserting his penis into her vagina.

On the third and final occasion, it was in the morning and the prisoner took the victim to the boundary of Jonah’s block, block number 861 and sexually penetrated her by inserting his penis into her vagina.

His Honour when determining sentence found that the starting point for persistent sexual abuse of a child was 20 years imprisonment. The Prisoner was sentenced to 20 years in hard labour.

2. In the State v Danny Tutuvo – CR 1420 of 2010 N4400 Ipang, AJ (as he then was) sentenced the prisoner to 18 years in hard labour after the Prisoner pleaded not guilty to four instances of persistent sexual abuse of a nine year old girl. The acts comprised of two digital penetration of the vagina and two penile penetration of the vagina. Prisoner was 55 years old and related to the victim.
   

100. In the State v JB (2007) N3224, Lay, J (as he then was) sentenced the Prisoner to a total of 26 years imprisonment after he pleaded guilty to persistent sexual abuse of his two biological daughters aged 17 and 13 years respectively. 10 years for the first and 16 years for the second count and ordered that sentences to be served cumulatively. However, due to the totality principle, the sentence was reduced to 20 years.
     

4. In the State v Steven Siname (2009) N3908 Lenalia, J imposed a sentence of 28 years after the Prisoner pleaded guilty to three counts of persistent sexual abuse of the biological sister aged 15 years at the time. Five years was suspended with condition to keep the peace for two years after serving the balance.
   
5. In the State v Peter Lare (2004) N2557 Kandakasi, J (as he then was) sentenced the Prisoner to 20 years after a plea of Guilty. Prisoner 40 years old who adopted victim when she was small. Though there was no aggravated physical violence, the Prisoner passed sexually transmitted disease to the victim. Facts revealed a pattern of persistent sexual abuse over a period of 2 years. It was a serious betrayal of trust.
   
6. In the State v Thomas Angap (2005) N2830 the court imposed a total aggregate sentence of 20 years on the Prisoner for persistent sexual abuse of a very young girl. The victim, 12, was subjected to persistent sexual abuse and continued over a period of six years even after the complaint had been filed with the police. There were altogether 4-6 counts of sexual touching to sexual penetration of the child under the age of 12 and 16 years respectively but charges were laid under sections 229 A(1) and (2) and 229 B of the Act. The victim was a stepdaughter of the Prisoner who married the victim’s mother. Victim was one of the four children of the wife’s previous marriage. The Prisoner has five children in his marriage to the victim’s mother.
   

SENTENCING FACTORS

MITIGATING FACTORS

23. The only mitigating factor on behalf of the Prisoner is that he has no prior conviction.

AGGRAVATING FACTORS

24. The aggravating factors are as follows;

1. Prevalence of the Offence
2. Involved one or more occasion of penile sexual penetration of the victim’s vagina.
3. Age disparity
4. Position of trust and dependency (Prisoner is the biological father).
5. The victim was threatened by the Prisoner with a knife.
6. The conduct of abuse occurred over a period of two years.
7. The Prisoner forced the victim to smoke marijuana and watch pornographic movies.
8. The victim Serah Andrew had thought of committing suicide.
9. Serah was severally traumatized and will live with this for the rest of her life.
10. This was a contested case and Serah was made to relive the events.
11. The Prisoner expressed no remorse.
12. No reconciliation or forgiveness
    

PERSONAL PARTICULARS

25. The Prisoner’s personal particulars are as follows:

1. He is 35 years old (time of offence)
2. From Kumbari, North Waghi, Jiwaka Province
3. Lives at Morata 1, National Capital District
4. Married
5. 3 children but 1 passed away. The oldest being 17 and the youngest 7 years old.
6. He is educated to Grade 5 level
7. He is a full time taxi driver
8. He earns K50.00 – K80.00 a day

SENTENCING GUIDE

26. In consideration of an appropriate penalty for the Prisoner, the Court has taken into account the victim impact statement by the victim Serah Andrew and her medical report.

27. The victim Serah Andrew states in her victim impact statement that:

1. The Prisoner is related to me as my father and we have stayed together for 15 years.
2. I was abused by my father since 2014 when I was doing Grade 5. I was 13 years old at that time.
3. In a period of 4 years I was abused by the person whom I trusted. The person whom I stayed with for my whole life.
4. Many times I was forced and threatened with dangerous weapons. I was physically assaulted many times to offer sex to my father.
5. At the ages of 13 and 14 I was forced to watch pornographic movies and smoke marijuana before engaging in sex with my father. I was helpless.
6. My life was restricted. I was forced to stay in the house and was not allowed to socialize with my friends.
7. Sometimes I was thinking of committing suicide or run away to other places because my life was not ok.
8. My education was seriously affected. Sometimes I didn’t have the courage to attend school because my mind was not settled. I stayed out of school many times and this has really affected my school performance.
9. Currently I am not attending school and I did not sit for my Grade 8 final exam.
10. My life was physically, mentally and emotionally affected by this incident. I will have to live this traumatized life my whole life.
11. I pray this Court will consider the physical, mental and emotional abuse that I have been through and impose a sentence that would suit the offence committed.
12. I don’t want to see the Accused again and I don’t want any more girls to face the same life that I’ve been through. The sentence that will be imposed will be a lesson to him and a warning to those who would try to create the same problem. .

28. I consider the facts of this case in this matter to be very serious for the reasons stated by the victim in her victim impact statement.

29. You were 35 years old and your daughter Serah was only 13 years old when you started sexually abusing her.

30. You did not stop to think for once that this was your blood, your very own daughter and what you were doing was wrong.

31. Instead you went ahead to satisfy your lust on your own daughter, you not only had sexual intercourse with her but you also penetrated her anus and she was forced and threatened to suck your penis. These are all acts which can only be described as animalistic behavior because only animals have sex with their children or parents.

32. You were married to a strong and healthy woman. The mother of Serah. She was available to you for your sexual needs. You could have enjoyed her charm and womanhood for your own sexual pleasure and comfort. But you chose otherwise.

33. I ask myself. What kind of a father are you? This is not how normal fathers behave.

34. As fathers we work hard and or go out of our way to put food on the table or in our children’s mouth, clothe them, put them to school and if they are sick we take them to the hospitals and so forth. We care for them.

35. You could have done that to Serah, given her own education and when she attained marriageable age, you as father could have given her hand away in marriage and then together with your wife be happy that you succeeded in her growth and upbringing. Again you did not do that.

36. Your actions fall way short of being called a father.

37. In the case of State .Vs. Kuyaps Toki Jonathan (2008) N3315 Kandakasi J, (as he then was) sentenced the Prisoner to 18 years after he pleaded guilty to one count of persistent sexual abuse pursuant to s.229 D (1) and (6) of the Criminal Code Act in breach of the relationship of trust. The offender in that case left his home village in the Telefomin area of West Sepik Province and came and lived with the family at Wangbin Village in Tabubil, Western Highlands Province.

38. Whilst being accommodated by the family between July 2006 and January 2007, he committed 4 different acts of forceful sexual penetration of the couple’s small daughter then 13 years old.

39. With respect, the State v Kuyaps Toki Jonathan N3315 was decided some 10 years ago and the sentence was for a person who pleaded guilty to the charge.

40. This case was a trial. Serah was made to relive the trauma and the psychologically painful ordeal she went through. You down played all that happened by saying that Serah’s mother wanted a new husband and that was the reason they made up the story.

41. In a more recent case of the State v Israel Wartovo CR 545 of 2014 (2017) Kirriwom, J sentenced the Prisoner to 25 years after trial.

42. The facts of the above matter were that the Prisoner penetrated his biological daughter on three different occasions in August, September and December 2012. The Prisoner in August of that year used his penis and penetrated the victim in her vagina and anus. The Prisoner than told the victim to suck his penis which she did.

43. On another occasion in September, the Prisoner picked the victim from school and sexually penetrated the victim by inserting his penis into her vagina. This was done in the back seat of a taxi.

44. On another occasion in December, after the victim returned home the Prisoner forced the victim to remove her clothes and he forcefully had sexually intercourse with her by inserting his penis into her vagina. At the time of the offence, the Prisoner was 46 and the victim was 13 years old.

45. The above case is very similar to the current case of State v Andrew Pora especially where position of trust and dependency is involved, the age disparity and the acts of penetration involving the mouth, anus and the vagina of the victim.

46. I take into account the sentencing trends which have developed from similar cases over time and respectfully consider that 25 years after the trial a good sentencing range for such cases where serious actions of indecency are involved and is a factor when determining sentence.

SENTENCE

47. In the Pre-sentence Report prepared by the Probation Service, the report stated that you Andrew Pora pose a danger to the community and someone who is not suitable for probation. You are a danger to young girls and the women folk especially to your daughter and your wife if you are released on probation.

48. This Court agrees with the summation of that report and fully endorses it. The Court also agrees that this is not a case where probation is warranted. There is no evidence that your imprisonment will cause hardship to you family.

49. This Court has a duty to protect young girls and womenfolk of this country from sexual intimidation, sexual harassment and further sexual abuses from likeminded perpetrators.

50. The girls and womenfolk of this nation have a right to walk around freely without fear of being intimidated, harassed or abused. This is their right as guaranteed by the Constitution.

51. Sadly so, and in reality in this country, that is not the case. Womenfolk are still walking around and living in fear of threats of constant intimidation, harassment and abuse.

52. Despite being found guilty you have not shown any remorse or apologized to your daughter Serah or your wife for what you did.

53. The Court notes that no major physical injuries were caused to Serah but her victim impact statement speaks of physical and psychological injuries that will last her a lifetime.

54. You have ruined the life of a very young girl, your own daughter. She will now live with the shame and stigma of being abused by her very own father. You have breached this very important bond between yourself and your daughter. A very special bond unlike any other. A very sacred bond.

55. Apart from a Lawyer/Client relationship, a Doctor/Patient relationship or Pastor/Congregation member relationship, with respect, this Court considers the father/daughter relationship to be a very special and sacred relationship. A very special relationship and bond orchestrated by God himself and nature, unparalleled and unmatched. Such is the relationship that exists between a father and a daughter. A loving and a caring relationship with respect, trust, honest and fatherly love.

56. I agree with the Prosecution submissions that this matter falls within the higher ranges of the sentencing scope and falls short of the maximum penalty category given the time span of sexual abuse being two years.

57. The sentence that this Court gives must sound a warning to likeminded individuals and deter others from committing similar offences and denounce what is becoming a very prevalent offence in society.

58. Taking into account the mitigating factors and all the circumstances surrounding this case, I also take into account the aggravating factors which out weight the mitigating factors. The orders are that:

1. The Prisoner is sentenced to 30 years Imprisonment in Hard

Labour.
2. 2 years and 7 months is deducted for time spent in custody
awaiting trial.

3. The Prisoner is to serve 27 years and 5 months

imprisonment in Hard Labour.

Sentenced accordingly
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused